Federal Court Decisions

Date: 20020704

Docket: T-1453-00

Neutral citation: 2002 FCT 741

BETWEEN:

                          ANDREW SCOTT REID

                                                                Applicant

AND:

                     THE NATIONAL PAROLE BOARD and

                     CORRECTIONAL SERVICE OF CANADA

                                                              Respondents

                          REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review of the decision of the Appeal Division of the National Parole Board of Canada dated July 21, 2000 in which it denied the applicant any form of parole.

[2]                 The applicant has been serving a life sentence for non-capital murder since his conviction in 1976. Other than a previous conviction for break, enter and theft in 1972, he has not been convicted of any other crimes. The applicant was paroled in 1986 but was recommitted approximately one year later after two events of a "sexual" nature were reported to the police.

  

[3]                 On January 27, 2000, the applicant appeared before the National Parole Board (the "Board") for his yearly parole review pursuant to Part II of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA"). Most of the psychiatric reports in the applicant's file at the time did not favour his release, except perhaps an addendum to Dr. Marshall's report dated April 7, 1997 (Applicant's Record, vol. 2 at 66) and another that was more than 20 years old. However, in a confidential report dated January 16, 1998, Dr. Marshall retracted his positive recommendation. The applicant was only given a "gist" of Dr. Marshall's new assessment. The "gist" states (Applicant's Record, vol. 2 at 69):

This is to inform you that a Protected Information Report [Number 98 423 010] has been submitted to the Bath IPSO's office. The information indicates that you fondled children for which you received no charges.

[...]

As a result of the information Dr. Marshall has changed his assessment of your risk. He has indicated that it is his opinion, "Reid is a far more persistent and dangerous sexual offender than I thought". He stated further that his previous assessment of your apparent treatment progress was inaccurate and that he does not recommend any form of conditional release until you have "satisfactorily dealt with them in a treatment program".

   

[4]                 In a letter dated September 8, 1999, Dr. Marshall denied ever referring to the applicant as a "sexual offender". The report itself is the subject of a confidentiality certificate, which attests to the fact that its disclosure would be injurious to the public interest: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 37(1).

  

[5]                 In its decision, also dated January 27, 2000, the Board wrote as follows (Applicant's Record, vol. 2 at 4):

You are a first time federal offender serving a life sentence for murder. The Board will not endeavour to repeat information included in previous Board decisions, and would refer the reader to the previous Board decision on October 21, 1997. Since that last decision, the Board is now in receipt of two updated reports from Dr. Marshall. Dr. Marshall talks about having received new information that relates to your offence cycle, and as a result he concludes that "Andrew is a far more persistent and dangerous sex offender than I thought." He further adds that he would definitely not recommend your release until you have satisfactorily addressed the issue of your sexual deviancy in further treatment. It appears that Dr. Marshall's comments now more closely mirror those of Dr. Hucker, Dr. Johnson, Dr. Dickey and Dr. Davidson, that in view of serious personality factors, that successful treatment for this condition may not be achievable.

Since your last hearing there have been some IPSO allegations that suggest that you may have been acting in a sexually predatory fashion toward other more vulnerable inmates. Nevertheless, we are aware that both the institution and the police have investigated this matter, and that there has been no follow up to these allegations in the way of institutional misconducts or street charges. Other than these allegations, there have been no other suggestions of physically violent behaviour. The Board notes as it did following your last hearing, that your attitude continues to reflect a strong level of anger. This is reflected in some of the letters you have written and in some of your comments to the Board today. What is particularly noticeable is your frequent inference of a "plot" or "hidden agenda" that others are perpetrating against you. You continue to show limited insight as to the way in which your own behaviour creates many of these negative situations.

    

[6]                 Accordingly, the applicant was denied day parole, full parole, as well as authorization for unescorted temporary absences.

  

[7]                 On February 27, 2000, the applicant appealed the Board's decision to the National Parole Board's Appeal Division (the "Appeal Division"). Principally, he argued that he was prejudiced by the decision not to release Dr. Marshall's confidential report dated January 16, 1998 and objected to references to his "anger" and to him being a "sexual offender". If the confidential report had been disclosed, the applicant submitted that he could have refuted the allegations made against him. He also impugned Dr. Marshall's "on again, off again" approach.

  

[8]                 On June 30, 2000, the Appeal Division rendered a split decision. Both members agreed that the "gist" of Dr. Marshall's report disclosed enough information so that the applicant was not prejudiced but concluded that the Board had erred by placing too much weight on Dr. Marshall's reports. In their view, Dr. Marshall's contradicting reports tainted his opinions to such a degree that the Board should have rejected them as unreliable.

  

[9]                 However, the members disagreed as to whether this error was sufficient to justify the Appeal Division's intervention. On the one hand, the first member concluded that the circumstances would lead to a reasonable apprehension of unfairness and that it should be resubmitted to the Board. On the other hand, the second member concluded that the applicant would not be prejudiced since, in essence, the Board could not have come to any other reasonable conclusion since all of the medical professionals were now in agreement. Accordingly, the second member went on to consider the applicant's other arguments and said that it was clear to the Board that the applicant had never been convicted of sex offences and that the use of the word "anger" was reasonable in the circumstances.

  

[10]            Given the split decision of the Appeal Division, the matter was referred for rehearing to third and fourth members, who were not privy to the earlier set of reasons. In a single set of reasons dated July 21, 2000, it concluded that the duty of fairness had not been breached, use of the term "sex offender" instead of an offender with sexual problems was of little or no consequence, and that references to the applicant's anger were reasonable.

  

[11]            The appeal was denied accordingly. The applicant now seeks judicial review of this decision.

  

[12]            He argues that the Appeal Division's decision should be set aside because it is based on erroneous information contained in his case file, contrary to subsection 24(1) of the CCRA. In particular, the applicant objects to documents in his file suggesting that he:

1. raped his eleven-year-old sister,

2. drilled holes in the wall of his bedroom allowing him to observe persons using the washroom,

3. made inappropriate phone calls to a married woman,

4. is a sex offender,

5. acted inappropriately towards two young girls and a female computer student in 1987,

6. fondled children,

7. caused a disruption on his range and uttered death threats, and

8. was charged with sexually assaulting another offender.

   

[13]            On several occasions, the applicant has tried to have inaccuracies removed from his file. Nevertheless, such references were still present when reviewed by the Board and the Appeal Division. He argues that these inaccuracies are referred to throughout his file in such a way that it could never be reviewed objectively.

  

[14]            Furthermore, the applicant maintains his argument that the Appeal Division erred by failing to acknowledge that the principles of fundamental justice were violated by the Board when it refused to disclose Dr. Marshall's confidential report. He relies on section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

  

[15]            The respondents argue that a high degree of deference is owed to the Board in these circumstances. However, it is also suggested that the Court does not have the jurisdiction to grant much of the relief sought by the applicant.

  

[16]            In the respondents' view, the Board cannot be held accountable for the correctness of information contained in the applicant's prison file. The responsibility to correct those inaccuracies lies with the Commissioner of Corrections pursuant to section 24 of the CCRA; however, the Commissioner cannot correct base information prepared by health professionals even if it reports findings that the applicant later denies. By contrast, the application herein arises from the Board's jurisdiction pursuant to Part II of the CCRA, wherein the Board has an obligation to consider all available information that is both reliable and relevant: CCRA, s. 101(1)(b), see also Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75. The respondents suggest that all of the information considered by the Board was clearly admissible and that the Court should not interfere with respect to the weight given to the evidence.

  

[17]            The respondents argue that the Board's decision was reasonably open to it and that the applicant is simply complaining that not enough weight was placed on information that would favour his release. Given that the Board had the benefit of the applicant's submissions regarding alleged inaccuracies in his file, the respondents contend that the Board could not have been under any of the illusions suggested by the applicant.

  

[18]            Finally, the respondents maintain that there were reasonable grounds for withholding information in this case since disclosure would not be in the public interest. Disclosure, they contend, would jeopardize the safety of a person or the security of a correctional institution: CCRA, s. 141(4)(a) and (b). Finally, it is submitted that the applicant was not prejudiced given the disclosure that he received.

  

[19]            The applicant has raised a number of issues but the respondent is correct in submitting few of which can be considered in this application for judicial review. The underlying argument throughout the applicant's submission involves the correctness of information in his file; unfortunately however, this is not the appropriate forum for resolving such a dispute. The applicant relies on section 24 of the CCRA, which states:

  

[20]            The problem facing the applicant is that the body responsible for correcting information in his file, as section 24 clearly states, is the Correctional Service of Canada (the "CSC") and not the National Parole Board (or its Appeal Division). Rather, the Board considers all of the evidence given to it according to subsections 25(1) and 101(b) of the CCRA:

   

[21]            While the applicant is concerned that the record contained inaccuracies, the Board determined that the information is relevant and reliable. It is not within its purview to look behind the documents that have been collected by CSC. The applicant's objections should therefore be addressed to the CSC, not to the Board. For example, in Tehrankari v. Canada (Correctional Service) (2000), 188 F.T.R. 206, the Court intervened to correct inaccuracies in the file of an inmate at Kingston Penitentiary. In that case, however, the inmate initially filed a complaint pursuant to subsection 24(2) of the CCRA. When his complaint was dismissed, he applied the grievance procedure referred to in section 90 of the CCRA and further set out in sections 74 to 82 of the Corrections and Conditional Release Regulations, SOR/92-620. Still unsatisfied but having exhausted all of his internal remedies, he then finally brought his application for judicial review to the Court within the thirty days prescribed by the Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(2). Justice Lemieux was obviously persuaded by some of his arguments.

  

[22]            I turn now to the decision of the Appeal Division, the decision currently under review. The role of the Appeal Division, as stated at the beginning of each set of reasons in this case, is the following (Applicant's Record, vol. 2 at 16, 20, 23):

The role of the Appeal Division is to ensure that the law and the Board policies are respected, and taht the rules of fundamental justice are adhered to and that the Board's decisions are based upon relevant and reliable information.

The Appeal Division review the decision-making process to confirm that it was fair and that the procedural safeguards were respected.

The Appeal Division has jurisdiction to reassess the issue of risk to reoffend and to substitute its discretion for that of the original decision makers, but only where it finds that the decision was unfounded an unsupported by the information available at the time the decision was made.

  

[23]            It is important therefore to examine the conclusions of the Board particularly with respect to findings of fact. The Court will only intervene if it can be shown that there was no evidence on the record to support those findings, if they were made in bad faith, or in a perverse and capricious manner. Here, the Board had before it the opinions of five medical professionals and all five were of the view that the applicant should not be released. There can be no doubt that the Board's decision was supported by the evidence and the Appeal Division cannot be faulted in so concluding.

  

[24]            Although the applicant may have preferred the Board to make mention of evidence supporting his position, it is not the responsibility of the Appeal Division, or of this Court, to reevaluate the evidence. I would note in particular that the Appeal Board had before it submissions from both the applicant and the respondents. I would agree with the respondents that the Board would not have been under some mistaken illusion as alleged by the applicant.

  

[25]            The applicant's second argument should also be dismissed. The respondents must balance their disclosure obligation against the protection of those people for whom they are responsible. In Cartier v. Canada (Attorney General) (1998), 165 F.T.R. 209, Justice Nadon reviewed a number of important cases in this area and like him I am of the view that in this case the applicant was given sufficient information to prepare an adequate response and that his procedural fairness rights, including those protected by the Charter, were not violated.

  

[26]            Accordingly, I hereby dismiss the application for judicial review.

   

      JUDGE

OTTAWA, Ontario

July 4, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

    

DOCKET:       T-1453-00

STYLE OF CAUSE: Andrew Scott Reid v. The National Parole Board and Correctional Service of Canada

                                                                                   

  

PLACE OF HEARING:         Peterborough, Ontario

DATE OF HEARING:           May 22, 2002

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROULEAU

DATED:          July 4, 2002

   

APPEARANCES:

Mr. Andrew Scott Reid             APPLICANT ON HIS OWN BEHALF

Mr. R. Jeff Anderson                  FOR RESPONDENT

  

SOLICITORS OF RECORD:

  

Morris A. Rosenberg

Deputy Attorney General of Canada                                FOR RESPONDENT